540 N.E.2d 815, 184 Ill. App. 3d 794, 132 Ill. Dec. 893 1989.IL.807
Appeal from the Circuit Court of Cook County; the Hon. Alexander P. White, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. McNAMARA, WOODWARD, and LEWIS, JJ., concur. PRESIDING JUSTICE BARRY, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
We consider here the question of subject-matter jurisdiction of the circuit court. On June 12, 1986, the Industrial Commission (Commission) affirmed an arbitrator's award in favor of claimant for temporary total disability. The Commission order also recited that the probable cost of the record to be filed as part of any review of the decision of the Commission was $35. Claimant decided to seek review.
On July 1, 1986, claimant presented a handwritten request to the Commission asking that payment of the fee for preparation of the record be waived together with a notice setting the motion for hearing on July 10, 1986. Before receiving a ruling on that motion, however, on July 3, 1986, claimant filed an application to sue or defend as a poor person with the circuit court of Cook County requesting review of the Commission's decision.
On the same day, the application to sue and defend as a poor person was considered ex parte and granted by a Judge of the circuit court of Cook County, as evidenced by a check mark in the box labeled "application granted" on the face of the application, followed by the signature of the trial Judge and a file stamp bearing the trial Judge's name also dated July 3, 1986. The record also reveals that summons issued and a certificate of mailing was made on July 3, 1986, although there is no written request for issuance of summons contained in the record.
Claimant's motion before the Commission was heard and denied in a written order entered on August 4, 1986. Upon payment of the $35 fee, the Commission issued a receipt for payment of the probable cost of the record on August 19, 1986, which was subsequently filed with the circuit court on August 22, 1986.
Respondent moved to dismiss the circuit court proceeding for lack of subject-matter jurisdiction. The trial court granted the motion and claimant filed a timely notice of appeal.
On appeal the parties raise the issue of whether the circuit court lacked subject-matter jurisdiction because summons was issued prior to verification by the circuit court clerk that the probable cost of the record had been paid. On our own motion, this court raised the issue of the effect, if any, of the circuit court's order allowing claimant's application to sue or defend as a poor person either prior to or simultaneous with the issuance of summons.
The cases are legion which state that failure to strictly comply with the provisions of section 19(f)(1) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)) deprives the circuit court of subject-matter jurisdiction. (Malone v. Industrial Comm'n (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167.) Section 19(f)(1) of the Act provides in relevant part:
"[No] summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act." (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1).)
Strict compliance with the Act has been relaxed only to the extent a receipt need not actually be exhibited as long as the circuit clerk has assured himself the probable cost of the record has actually been paid prior to the issuance of summons. Malone, 141 Ill. App. 3d 116, 489 N.E.2d 1167.
It is conceded by claimant the requirements of section 19(f)(1) were not met. Claimant argues, however, her request to waive the fee for issuance of summons which was pending before the Commission when review to the circuit court was sought is sufficient to obviate the need to strictly comply with section 19(f)(1), since the 20-day statutory period for filing for review of the Commission decision was running and, ...